A-69043, DECEMBER 30, 1935, 15 COMP. GEN. 576

A-69043: Dec 30, 1935

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ARE NOT CONTRACTS "FOR ANY PUBLIC WORK. REQUIRING THAT GOVERNMENT CONTRACTS FOR ANY PUBLIC WORK OR SERVICE SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY BUT A CODE MEMBER. AS FOLLOWS: THERE IS ENCLOSED FOR YOUR INFORMATION. THESE LEASES ARE NOT CONTRACTS FOR A PUBLIC WORK OR SERVICE. THEY ARE CONTRACTS GRANTING TO THE GOVERNMENT A CERTAIN PRIVILEGE FOR THE USE OF BARE LAND. WE ARE INCLOSING FOR YOUR INFORMATION (AND FOR RETURN WITH YOUR REPLY). ONLY FROM PRODUCERS WHO ARE MEMBERS OF THE COAL CODE. SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY PRODUCER EXCEPT SUCH PRODUCER BE A MEMBER OF THE CODE" PROVIDED FOR IN SAID ACT.

A-69043, DECEMBER 30, 1935, 15 COMP. GEN. 576

LEASES - LAND FOR AIR NAVIGATION AIDS - BITUMINOUS COAL CONSERVATION ACT OF 1935 LEASES OF PRIVATELY OWNED LAND FOR THE MAINTENANCE OF AIDS TO AIR NAVIGATION, INVOLVING NO MAINTENANCE ON THE PART OF THE LESSEE OR OWNER, ARE NOT CONTRACTS "FOR ANY PUBLIC WORK, OR SERVICE" WITHIN THE MEANING OF THE BITUMINOUS COAL CONSERVATION ACT OF AUGUST 30, 1935, 49 STAT. 1007, REQUIRING THAT GOVERNMENT CONTRACTS FOR ANY PUBLIC WORK OR SERVICE SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY BUT A CODE MEMBER, AND THE PROVISION NEED NOT BE INCLUDED IN SUCH LEASES.

COMPTROLLER GENERAL MCCARL TO THE SECRETARY OF COMMERCE, DECEMBER 30, 1935:

THERE HAS BEEN RECEIVED YOUR LETTER OF DECEMBER 16, 1935, AS FOLLOWS:

THERE IS ENCLOSED FOR YOUR INFORMATION, A COPY OF A PRESS RELEASE DATED NOVEMBER 16, 1935, ISSUED BY THE NATIONAL BITUMINOUS COAL COMMISSION CONCERNING THE APPLICATION OF SECTION 14 OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935 TO THE VARIOUS TYPES OF GOVERNMENT CONTRACTS, AND IT APPEARS THAT SECTION 14 HAS BEEN CONSTRUED BY THE COMMISSION TO APPLY TO EVERY GOVERNMENT CONTRACT FOR PUBLIC WORK OR SERVICE, INCLUDING LEASES AUTHORIZING THE USE OF PROPERTY.

THIS DEPARTMENT LEASES A LARGE NUMBER OF SITES FOR THE MAINTENANCE OF AIDS TO AIR NAVIGATION, SUCH AS INTERMEDIATE LANDING FIELDS, AIRWAY BEACONS, AND RADIO STATIONS. THESE LEASES ARE NOT CONTRACTS FOR A PUBLIC WORK OR SERVICE. THEY ARE CONTRACTS GRANTING TO THE GOVERNMENT A CERTAIN PRIVILEGE FOR THE USE OF BARE LAND, AND WE SUGGEST THAT THE ACT HAS NO APPLICATION THERETO. IT ALSO APPEARS THAT THE OMISSION, FROM SUCH LEASES, OF THE PARAGRAPH REFERRED TO IN SECTION 14 (B) OF THE ACT WOULD NOT HINDER THE REMEDIAL PURPOSE OF THE LAW FOR THE REASON THAT THE LESSOR WOULD NOT PURCHASE BITUMINOUS COAL TO USE ON OR IN CARRYING OUT THE CONTRACT.

WE ARE INCLOSING FOR YOUR INFORMATION (AND FOR RETURN WITH YOUR REPLY), A TYPICAL LEASE ON OUR FORM AB-413, AND WE RESPECTFULLY REQUEST YOUR OPINION ON WHETHER THE OMISSION OF THE PROVISION, REQUIRING THE CONTRACTOR TO PURCHASE BITUMINOUS COAL, AS MAY BE USED IN COMPLYING WITH THE TERMS OF THE LEASE, ONLY FROM PRODUCERS WHO ARE MEMBERS OF THE COAL CODE, WOULD BE IN CONTRAVENTION OF THE PURPOSE OF THE LAW.

SECTION 14 (B) OF THE BITUMINOUS COAL CONSERVATION ACT OF 1935, APPROVED AUGUST 30, 1935, 49 STAT. 1007, PROVIDES THAT EACH CONTRACT MADE BY THE UNITED STATES OR ANY DEPARTMENT OR AGENCY THEREOF "WITH A CONTRACTOR FOR ANY PUBLIC WORK, OR SERVICE, SHALL CONTAIN A PROVISION THAT THE CONTRACTOR WILL BUY NO BITUMINOUS COAL TO USE ON OR IN THE CARRYING OUT OF SUCH CONTRACT FROM ANY PRODUCER EXCEPT SUCH PRODUCER BE A MEMBER OF THE CODE" PROVIDED FOR IN SAID ACT. LEASES SUCH AS HERE INVOLVED, WHICH ARE RATHER IN THE NATURE OF LICENSES TO USE UNIMPROVED LAND AND UNDER WHICH NO MAINTENANCE IS REQUIRED BY THE LESSEE OR OWNER, ARE NOT CONTRACTS FOR A PUBLIC WORK OR SERVICE. HENCE, I HAVE TO ADVISE THAT THE SAID SECTION 14 (B) HAS NO APPLICATION TO SUCH LEASES.